Notice: Public Beware

Public notices in local newspapers are a key element in keeping citizens informed about government goings-on. Giving people a heads-up on public hearings on everything from annexations to zoning, contract bids to new ordinances, the notices are all about transparency of government.

One might think that government agencies would have some strict rules to abide by when posting public notices. But in Texas, the rules are all over the map.

Some state agencies like the Texas Railroad Commission allow gas drilling companies to file required public notices in the Commercial Recorder, a local five-day-a-week paper with a circulation of less than 5,000, available in local courthouses and almost nowhere else. Critics claim that gas drilling companies like Chesapeake Energy and XTO have put pressure on the state agency to allow them to use the little paper that hardly anyone sees so that the fewest possible people will actually get notified.

The Texas Commission on Environmental Quality, meanwhile, has a different set of rules. When private businesses want a waiver on their air quality permits, they have to post a notice. But in the past year several businesses were told by TCEQ they could not publish the notices in Fort Worth Weekly, which has an average circulation of about 55,000 and boxes all over the county, because this newspaper does not have enough “general circulation” in certain parts of Tarrant County.

If this all seems confusing, it is: different rules, different procedures for different agencies. Adding to the confusion is a movement that would allow Texas local and state government agencies to merely place their public notices on their web sites. Six bills were introduced in the last legislative session that would have allowed that, but none passed.

“We opposed those bills because not everyone has access to the internet, and these public notices tend to get buried on those web sites,” said Keith Elkins, executive director of the Freedom of Information Foundation of Texas. Government agencies “can post these notices online as well, and we think that is a good idea. Just give the citizens different opportunities to find out about issues happening in their cities, counties, and the state,” he said.

“Our position is that we believe newspapers that have the widest coverage to the widest audience should be the first choice [for public notices],” Elkins said. “But one thing should be made clear: The decision on which papers can be used should not be based in any way on the coverage they do on issues that affect the public.”

Kathryn Jones is one newspaper editor who knows that her paper’s reporting has indeed affected local government’s decisions on publication of notices.

Jones, managing editor of the Glen Rose Reporter, said that for decades, the city alternated year by year on which of two local papers would get the small town’s public notices. One year the Reporter (circulation 3,000) would get it; the next year it would the Glen Rose News (circulation 750).

Last year, however, Jones’ newspaper’s coverage of the Glen Rose mayor and council led to a move to give the public notices exclusively to the News. That proposal was defeated.

City officials “claimed there was too much negative reporting in our paper and tried to punish us and pull city advertising,” Jones said. “But we qualified under the state standards, and one might think getting the notices in a higher circulation paper might get more people to see them.”

Local governments like the city of Fort Worth can pick an “official newspaper” of the city and contract with them solely for an entire year. This year the Fort Worth Star-Telegram won the bid by offering the city ad rates far below that of the Commercial Recorder. The contract guarantees the Star-Telegram $170,000 for the coming year.

State law spells out four criteria that newspapers have to meet to be legally qualified to print public notices. However, according to the Texas Attorney General’s office, state agencies don’t have to abide by those criteria.

Generally, papers in Texas qualify to run public notices if they devote at least 25 percent of their editorial space to general news content, publish at least once a week, have a second-class postage permit and have been publishing for at least a year. Fort Worth Weekly qualifies on all of those grounds.

So it came as a surprise to several local businesses — and to Weekly publisher Lee Newquist — when TCEQ began refusing to accept the Weekly as a legitimate place to publish notices of things like applications for waivers of air pollution rules.

Businesses that are required to publish such notices as part of the process of obtaining the waivers generally send out queries about advertising rates to various local publications that meet the state criteria. Ad sales representatives reply, and the business chooses where to publish the notice. The business then sends tearsheets and proof of payment to TCEQ.

But in three cases since February, TCEQ ruled that the circulation numbers for the Weekly in certain parts of Tarrant County didn’t meet the standards of what is considered “general circulation.” In those instances, businesses in Arlington, Roanoke, and Benbrook were applying for air permit waivers.

The rulings were made after the notices were published and paid for. TCEQ required the businesses to republish the notices in the Star-Telegram, costing each business an extra $2,500 or so. The Weekly had charged them between $750 and $1,200 for the same notice, depending on ad size.

“An analysis of whether a newspaper is one of general circulation requires an examination of the factors defined in [state government code] as well as additional examination on a project-by-project basis of the newspaper’s content,” TCEQ staff attorney Betsy Peticolas wrote in an e-mail to the Weekly. However, “there is no fixed number of readers or ratio of readers to the population necessary for a newspaper to be considered one of general circulation.”

She denied that the Weekly’s publication of stories critical of TCEQ had anything to do with the agency’s decision.

Asked to explain what an “examination of the newspaper’s content” meant, Peticolas declined to elaborate.

The business owners did not want to talk on the record, because their air permit waiver requests are still pending.

“We feel we really got screwed on this one because we went with the Weekly because it qualified under state code and was cheaper,” one business owner said. “But then TCEQ said we had to publish another ad at almost three times the cost. When I asked them questions about why we had to do this, they had no real answers.”

Newquist was somewhat perplexed by the TCEQ decisions. “On the one hand, [TCEQ] says that we don’t fit the guidelines for some of these ads, and then they say there are no real guidelines,” he said.

TCEQ decided that the Weekly circulation in those three suburbs was not high enough to meet their “general circulation” guidelines. The determination was made based on information from the Weekly about the number of copies placed in newspaper boxes in those areas.

Newquist said that about half of the Weekly’s copies are picked up downtown, but that many of those copies are read by those who work downtown and live in other parts of the county. “Just counting the numbers we put in boxes out in those suburbs is misleading,” he said.

Last year, Chesapeake Energy filed a request with the Texas Railroad Commission for what’s called a Rule 37 exception, to allow it to take natural gas without paying for it from property owners who have not signed leases. The exception involved the University West neighborhood. Chesapeake had run a notice of their request in the Star-Telegram, and 13 homeowners filed protests.

A week later, Chesapeake withdrew its request but refiled a few weeks later. This time they posted a public notice in the Commercial Recorder, the paper that contains mostly court filings and has a circulation of less than 5,000. None of the homeowners protested, because none had read the notice, since none of them had even heard of the Recorder. The Rule 37 exception was approved, and drilling began a few months later.

Just last week, the 12-page Recorder carried four public notices in the paper on waivers sought by drilling companies.

Jones thinks the state needs to set policy and adhere to strict standards on what papers qualify and allow businesses and governments to pick which publications they want to put their public notices in.

As to whether government agencies are steering business to what they consider friendly news media outlets, she said she is seeing it more and more.

“Just this experience [the Weekly] has had with the TCEQ,” she said. “The paper hits all of the criteria the state code has laid out. But maybe this has more to do with the paper’s coverage of gas drilling, air quality issues, and what the TCEQ has done and not done. I think the TCEQ is cherry-picking here.”